119 Iowa 526 | Iowa | 1903
While attempting to cross a street at the intersection of Third avenue and Second street west in the city of Cedar Eapids in a buggy in which he was riding, plaintiff was struck by a street car being operated on defendant’s line of road, and received the injuries of which
Instruction one asked by defendant reads as follows:
“(1) The basis of this action is the alleged negligence of the defendant in the operation of one of its cars in some of the particulars set out in plaintiff’s petition, and in your deliberations you will confine yourself to a consideration of the particular acts of negligence set out in plaintiff’s petition. Negligence, in law, is defined as doing that which a person of ordinary prudence would not do under similar circumstances, or failure to do that which a person of ordinary prudence would do under the same or similar circumstances.
“Before the plaintiff can recover in this action, he must show by a preponderance of the testimony two things: First that the defendant was guilty of some act of negligence as defined above, and as set forth in his petition, which caused the injuries complained of; and, second, that he himself did no negligent act which contributed to such injuries.
“By a preponderance of testimony is meant the greater weight or value of the testimony, and not necessarily the greater number of witnesses. In determining the question of preponderance of the testimony, you will be at liberty to consider the opportunity the several witnesses who have testified had to see and understand the things about which they testified, and interest or lack of*529 interest in the event of this suit, and the actions and demeanor of the several witnesses while on the witness stand.” Failure-to give the last paragraph of the request is assigned as error.
In lieu thereof the court instructed, as follows: “(7) You are the judges of the facts. ■ The burden -of the proof is upon the plaintiff to establish the material allegations of his petition by a fair preponderance of the evidence. By a preponderance-of the evidence is meant the greater weight of the evidence, whic i does not necessarily mean the greater number, of witnesses. (8) You are the judges of the credibility of the witnesses. You have the right and it is your duty, -not to consider such testimony as does not appear to you,, as reasonable men, to be worthy of credence.” .¡-
II. The second, third, and fourth instructions asked by defendant read as follows: “(2) If you find from the evidence that the plaintiff, before attempting to cross the stfeet railway track at the time of the injury, could, by looking, have seen the car in time to have avoided the accident, but failed to look, or by .listening could have heard the car in time to have avoided the accident, but failed to listen, and you further find from the evidence that the injury was the proximate result of his failure to either look or listen, then he was guilty of negligence contributory to his injury, and he cannot recover in this action. (3) The evidence shows without conflict that the plaintiff has frequently crossed the street railway at the place of the injury prior to. the accident, and it further shows that he was thoroughly familiar with the location of such track, and knew that electric cars were operated at the crossing where the injury happened. Under such circumstances the plaintiff was required to exercise a higher degree of caution and watchfulness than if he had not possessed the knowledge above referred to. If you find that the motorman failed to sound a gong or ring the bell as he approached the place where the accident happened, that fact alone will not entitle plaintiff to recover in this action. The plaintiff, in. approaching the street car track, was required to use the sense of sight as well as that of hearing; and, if he failed to exercise either the sense of sight or hearing, and he was injured in consequence of such failure, then such failure constituted contributory . negligence, and he cannot recover in this action. (4) The motorman operating the car had the right to rely upon the
the negative testimony tending to show that the witnesses testifying did not hear the gong ring. Therefore if you find the testimony upon this point is of equal weight or value, it will be your duty to find that the gong was ringing.” As applied to the facts shown in the record, there was no error in denying this request. The witnesses who gave the so-called negative evidence, or some of them, were in as good position to hear sounds and signals as those who testified that they heard. In such a case it would have been error to have given the instructions asked. Spaulding v. Railway Co., 98 Iowa, 205; Lee v. Railway Co., 80 Iowa, 174; MacKerall v. Railway Co., 111 Iowa, 549. The evidence adduced by plaintiff was not negative, but positive. Doran v. Railroad Co., 117 Iowa, 442.
IY. The eighth instruction asked by the defendant was to the effect that the speed of the car was immaterial,■■ unless the jury found such rate of speed was so high that proper regard was not had for the safety of persons who, in the exercise of ordinary care, might approach the track for the purpose of going upon or crossing the same. The one given by the court in lieu thereof read: “If you find
The judgment is aeeirmed.